Monthly Archives: October 2014

For social media law enthusiasts in Kenya, this month witnessed the 2014 Social Media Awards (SOMA) sponsored by OLX. This second edition of SOMA saw participation of 100 nominees in 21 categories and serves to demonstrate the immense impact of social media for personal and business growth. Leading mobile operator, Safaricom Limited was a triple winner at SOMA. In the Customer Care category, Safaricom scooped the award beating Chase Bank, Orange and Airtel in addition to receiving the overall Corporate-of-the-Year Award. Safaricom Chief Executive Officer Bob Collymore was also voted this year’s most influential corporate personality in Kenya at SOMA. For the full list of nominees and winners, see here. Another big social media related event this month was the launch of the “A-Z of Kenyan Twitter” Report by Nendo Ventures. Read more about #AtoZofKOT here.

Meanwhile, in Nigeria, the main social media law story was the case of Linda Ikeji, whose blog was taken down for copyright infringement but later restored. This blogger has discussed the Linda Ikeji blog story here. Ikeji’s story brought out many interesting issues, one of which was abuse of the take-down provision under the US Digital Millenium Copyright Act (DMCA). It appears that blogs which run on platforms like blogger, tumblr, medium, typepad or even facebook notes are much easier to take down as opposed to stand-alone blog sites with registered domains. However, these blogging sites and other social media site are increasingly unable to comply with a large proportion of the take down notices they receive as these notices are either incomplete or abusive. For instance, between the months of January and June 2014, Twitter did not comply with nearly 1 in 4 takedown notices it received; Wikimedia complied with less than half; and WordPress complied with less than two-thirds. On the issue of DMCA abuse, Automattic, the company behind WordPress (Ahem, the best blogging platform in the world.) has included a Hall of Shame section in is transparency reports which highlights DMCA abuses by all sorts of businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. See the Hall of Shame here.

In South Africa, the recent judgment in the High Court case of D v V (12537/12) [2014] ZAGPPHC 787 may be of particular importance to social media law enthusiasts. A copy of the judgment is available here. In this case, a Pretoria mother of two, only identified as R, claimed ZAR 750,000 (KES 7.5M) in damages from her husband’s mistress, only identified as C. Her claims were based on adultery, loss of comfort and alienation of affection. R testified that c intended to break her marriage. The crux of R’s case against C was that the latter intended to break her marriage and in support of her case, R relied on seveal communications and photos on Whatsapp and Facebook. With respect to Whatsapp, C sent a picture of her vagina to R’s ex-husband and their son brought it to the attention of R. This picture alerted the plaintiff to the adulterous relationship between C and R’s ex-husband. Thereafter, C sent R numerous vulgar and boastful messages about her adulterous relationship with R’s ex-husband, despite being fully aware that C was happily married to her ex-husband.

With respect to facebook, C posted pictures of her kissing R’s ex-husband, including as a her profile picture. R told the court that these acts on facebook were intended to humiliate her, break her heart as well as her marriage. R further argued that C’s conduct led to R’s ex-husband eventually moving out of their communal home after being violent and antagonistic towards R and their son. In light of the above, the court found in favour of R and ordered C to pay R a total of ZAR 85,000.00 as damages for adultery, loss of comfort, society and services of her ex-husband as well as for alienation of affection. In addition, C was ordered to pay R’s costs of suit. This outcome compares favourably with the recent Kenyan case of ES v IMK [2014] eKLR which also addressed adultery established through facebook pictures.

The Linda Ikeji Blog (LIB) commands a great deal of readership and influence in Nigeria with an average of 100 comments per blogpost and over 425,000 followers on twitter. Earlier this month, it was reported that LIB was taken down from the Google-owned “Blogger” platform and later restored by Google. Linda Ikeji disclosed that LIB was taken down following allegations of plagiarism and copyright infringement, presumably under the US Digital Millenium Copyright Act (DMCA). However Google has declined to categorically state why the blog was taken down but generally explained that: “We [Google] take violations of policies very seriously as such activities diminish the experience for our users. When we are notified of the existence of content that may violate our Terms of Service, we act quickly to review it and determine whether it actually violates our policies. If we determine that it does, we remove it immediately.”

This blogpost considers LIB’s recent experience from an intellectual property (IP) perspective and concludes that this case should be an eye-opener to bloggers, especially in Kenya.

As we know plagiarism and copyright infringement are not the same thing. The key distinguishing factor is the use intended. A copyright infringer uses your work in order to derive some commercial benefit. On the other hand, a plagiarizer uses your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement.

In the case of LIB, Ikeji addresses here the allegations of plagiarism and copyright infringement made against her blog:

“My understanding of plagiarism is when you take someone’s work and republish it verbatim as your own work. I don’t do that. But if I have ever done that in the past then I apologize. It was an oversight. I do get a lot of original content, way more than any other blogger in this country. Some of the biggest news stories in this country in recent times was broken by LIB. From Goldie’s death (God rest her soul) Aluu4, ABSU rape, P-Square saga, Solomon Akiyesi and plenty more. And when I take news from other sources, I always credit them. When I don’t give credit is when the news is everywhere so I write it in my own words and make it mine. I don’t believe that is a crime. I admit that I have used photos without giving credit. I apologize. That will never happen again. You learn every day. And I have learnt from this.”

Here in Kenya, the case of media personality Caroline Mutoko’s blatantly plagiarised article has been aptly by one of her own colleagues here. Despite Mutoko’s vehement denials, it was evident to most observers at the time that the matter was ripe for both criminal and civil action at the instance of the copyright owner who reportedly confirmed that Mutoko never sought authorisation to use the work. Although the fair dealing provision of the Kenya Copyright Act may serve as a defence in cases of infringement, there remains a compulsory requirement of attribution which reads “subject to acknowledgement of the source”.

Still on the issue of copyright, an interesting issue that arose in the LIB story relates to abuse of the DMCA take-down procedures. Ikeji claims that Google restored LIB “in record time” after verifying that the allegations of copyright infringement were “bogus and deliberate sabotage.” Generally speaking, bogus copyright and trademark complaints threatens all kinds of creative expression on the Internet. In this connection, many will recall the recent case where Wikimedia Foundation refused to take down that notorious monkey selfie. The monkey selfie claim by Caters News Agency against Wikimedia is considered by some as “dubious” and a DMCA abuse. See our discussion of the monkey selfie dispute here.

In addition to copyright issues, there is also an important trade marks lesson in the LIB story. It was reported that once LIB was taken down by Google, Ikeji was forced to direct her readers to a temporary site: lindaikeji.mobi since “cybersquatters had acquired all her potential domain names” including the domain name: lindaikeji.net which had been registered by one Mukhtar Dan’Iyan through an alias.

Ordinarily one would expect that any blog which is able to get thousands of comments and sell advertising space to companies, such as LIB, would have long taken the necessary steps to protect the LIB name as a trade mark and register several domain names closely related to LIB as a defensive measure against infringers and squatters respectively. However, this appears not to have been the case in the LIB story.

In the final analysis, any serious online content creator must be aware of the boundaries of IP and operate within those boundaries. The role of IP becomes more critical where the online content creator’s blog or website is commercial in nature.

“It is…submitted that the system of alienable copyright is not conducive for countries in Sub-Saharan Africa and cannot, unless the legislatures of these countries intervene, ever give rise to a sustainable, home-bred and poverty alleviating industry.” – JJ Baloyi, 2014.

This blogger has recently come across a compelling article titled “Demystifying the Role of Copyright as a Tool for Economic Development in Africa: Tackling the Harsh Effects of the Transferability Principle in Copyright Law” written by JJ Baloyi in the South African Potchefstroom Electronic Law Journal. A copy of the article is available here. The central argument in Baloyi’s article is that the transferability principle in copyright law has had the inadvertent effect of stifling copyright-based entrepreneurship, and thus economic development in Sub-Saharan African countries that inherited copyright laws from their erstwhile colonial masters, England or France.

This blogpost discusses Baloyi’s well-written article and examines its implications for Kenya especially in light of the possible solutions put forward to tackle the ‘harsh effects’ of the system of assignment under copyright within Africa.

Baloyi’s article asks the question why many Sub-Saharan African countries, though having copyright and related rights laws and though generally endowed with rich cultural resources, have not been able to realise significant economic development and growth from the economic exploitation of intellectual property (IP) works and legally-protectable expressions emanating from such resources. Baloyi, former General Counsel at SAMRO, attempts to answer this question with a focus on the music industry where he draws most of his insights, observations and experience.

The article submits that there are several sets of barriers hindering musical entrepreneurship in Africa including psychological barriers, barriers in relation to the business environment, barriers relating to external ability and barriers in relation to the influence of demographics.

On psychological barriers, the article starts by appreciating the stress and hard work involved in giving us great musical pieces that we, as society, have become accustomed to. In this regard, the copyright regime demands that musicians exert themselves through their skill, time and judgment in order to create works that are original originating from their own efforts rather than slavish copies of works produced by the efforts of others. Therefore the article submits that expecting musical artists to be entrepreneurs in addition to being creators, is requiring more than the ordinary from them! Nonetheless these creators should be encouraged to be entrepreneurs even though it is accepted that not all artists will be entrepreneurs, just as not all lawyers can be entrepreneurs, for instance! Therefore artists who surround themselves with good advisors, would only need to display an entrepreneurial mind-set and leave the entrepreneurial activities to others.

Still on psychological matters, the article argues that the possession of IP within an environment where there is a strong IP protection regime is a strong determinant of entrepreneurial growth aspirations. Therefore, ownership of copyright in such an environment should be a strong motivation for artists to be involved in entrepreneurial activities.

Regarding barriers in relation to the business environment, the article observes that the lack of social networks becomes crucial in two instances, firstly collaborations where an artist seeks to jointly author a musical work with artists endowed with different skills and secondly marketing where an artist decides to market his own musical works.

The article gives primary focus to the lack of resources which it maintains is the main difficulty experienced by artists in Africa in respect of securing funding for their music entrepreneurial endeavours. In this regard, the article observes that most authors of musical works find themselves with no option but to assign i.e. transfer ownership in, their copyright to music publishers under terms that are highly unfavourable to the authors. It follows that once these authors have accumulated enough savings over time (due to the barriers relating to demographics) to incorporate and market their own publishing and recording companies, they find it difficult to engage in entrepreneurial activities relating to their copyrights as these rights have long been assigned to others. This so-called “endless cycle” is the main problem Baloyi seeks to address through his article.

Therefore the article argues that the artists’ lack of resources necessary to engage in entrepreneurial activities vis-a-vis their copyright works denies them the enjoyment of the rent-creation benefits under copyright licensing whereby the copyright owner may grant either an exclusive or a non-exclusive license to a user, in exchange for payment or compensation. Therefore these licenses would be able to earn the artists (and their heirs in title) income in the nature of rents (i.e. royalties) for the duration of the copyright.

In light of the above, the article argues that Sub-Saharan African countries should develop its copyright laws to address concerns relating to the internal conditions and developmental needs of their countries. This article points out the examples of United States, Canada, the European Union and India which have moulded their copyright laws in light of their unique prevailing circumstances to produce home-grown solutions. In this regard, the article submits that beyond the minimum standards required in Berne and TRIPs, African nations can craft provisions that would safeguard the interests of their creators while not offending their international obligations.

The article is categorical that the dualist systems in common and civil law traditions of African countries result in the “endless cycle” where authors cannot exploit their copyright works as explained above. In this regard, the article refers favourably to the German system of author’s rights (a monist system) where the economic rights are seen as being interwoven with the moral rights and thus cannot be separated out, making them incapable of being assigned. The article argues that the monist concept of authors’ rights is consistent with the human rights approach to intellectual property rights espoused in South Africa and other Sub-Saharan African countries.

The legislative and policy solutions put forward in the article include, the use of reversionary provisions in copyright legislations, structuring music business contracts to safeguard the interests of artists and strengthening the role of collective management organisations (CMOs). In conclusion, Baloyi appeals to the legislatures in Sub-Saharan Africa to take advantage of the evolutionary nature of copyright and its changing paradigm internationally:-

“Rather than holding to the tenets of a system that has so far failed their countries, it would be responsible for the legislators of these countries to start thinking of those elements in other copyright systems that they can incorporate into their laws to unshackle their authors from the harsh effects of the transferability rule.”

“In resolving this dispute, account must be taken of the nature of the resource (Spectrum) being contested, the economic fundamentals under-guarding its capitalization, the country’s obligations under international law, and the values decreed in our Constitution. At the end of the day the people of Kenya, local investors, international investors all have a stake. Of course care must be taken so as not to leave this resource to “the tragedy of the commons”. At this stage, we recall the words of Mr. Kimani Kiragu when he urged thus:
“I started by taking you on a flight to the Caribbean and referring to, or quoting Mr. Robert Marley. Let me come back home with regard to the three principles…If I could refer to our very own Ken Wa Maria, ‘these things, these are my things, these are your things, these are our things, these are the fundamentals’.” -Mutunga, CJ & P at para 388.

In the recent case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court unanimously ruled on several contentious copyright issues relating to Kenya’s ‘imminent shift’ from analogue terrestrial broadcasting to digital terrestrial broadcasting on or before the international analogue switch-off date of June 17, 2015. A copy of the judgment is available here. This blogpost will examine how the Supreme Court addressed the following issues relating to copyright law, namely: (i) whether the Communications Authority of Kenya (CAK) formerly known as Communications Commission of Kenya (CCK) violated the intellectual property (IP) rights of three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group by authorizing two broadcast signal distributors (BSDs) namely Pan African Network Group (PANG) and Signet Kenya Limited along with pay TV broadcasters such as StarTimes Kenya Limited and GOtv Kenya Limited to transmit the broadcasts of the aforementioned FTA broadcasters without the latter’s consent?; and (ii) whether the issue of infringement of IP rights was properly before the High Court, in the petition filed by the FTA broadcasters for the enforcement of their fundamental rights and freedoms?

The digital migration case started off when three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group went to the High Court of Kenya in the case of Royal Media Services Ltd v Attorney General & 2 others [2013] eKLR in a bid to stop the migration from analogue to digital television broadcasting. In its prayers to the court, the petitioners sought, inter alia, an order of permanent injunction restraining several digital broadcasters from broadcasting, distributing or in any way interfering with the Petitioners’ programs, broadcasts, copyrighted material and productions or in any way infringing the Petitioners’ intellectual property rights. Therefore one of the issues for determination in this case was whether these digital broadcasters have breached and or violated the petitioners’ intellectual property rights.

Majanja J. sitting in the High Court dismissed as frivolous the petitioners’ allegations against the pay TV broadcasters for IP rights infringement. According to the learned judge, despite the inclusion of IP rights under Article 40(5), these rights are still considered as ordinary rights as opposed to fundamental rights and freedoms. The court therefore held that only cases of violation of fundamental rights and freedoms warrant a constitutional petition in the High Court. Therefore where IP rights violations occur, the affected person must rely on the specific IP regime established by law to address the area of IP concerned.

Dissatisfied with Majanja J’s decision, the three FTA broadcasters appealed to a three-judge bench sitting in the Court of Appeal in the case of Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR. Two out of the three appellate judges (Nambuye and Maraga JJA) set aside the judgment of Majanja, J in the High Court and made two IP-related findings in their separate but concurring judgments, namely:- firstly, that Majanja J. erred in law in holding the IP rights of the three FTA broadcasters were not violated by the pay TV broadcasters in broadcasting the former’s programs and content without consent; and secondly, that Majanja J. erred in law in holding that infringement of intellectual property rights could not be the subject of a constitutional Petition. This blogger expressed his shock and disappointment at this majority view of the Court of Appeal here.

This brings us full circle to the present decision by the Supreme Court.

From the outset, it is refreshing to see the Supreme Court zeroing in on the copyright issues in this digital migration case. Firstly, the court engages in the important exercise of determining whether or not a chain of title exists between the alleged infringers and the three FTA broadcasters’ rights. In the case of Signet and PANG, the Supreme Court finds a myriad of letters between the CCK and the three FTA broadcasters showing that the latter had given permission to Signet and PANG (and its pay TV operator StarTimes) to carry their respective FTA broadcasts during the pilot phase of the digital migration process. In the case of GOtv Kenya, it was successfully shown that GOtv was an affiliate of MultiChoice and that the latter had signed Channel Distribution Agreements with all three FTA broadcasters.

However, the underlying issue up for determination by the apex court was whether the conduct of CCK/CAK licensees pursuant to Regulations 14(2)(b) and 16(2)(a) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 (the so-called “must carry” rule) could be reconciled with the constitutional right to protection of intellectual property as well as the provisions of the Kenya Copyright Act.

These Regulations provide as follows:
“14. Subscription broadcasting service licenses and subscription management services.
(1) The Commission may upon application, in the prescribed form, grant a subscription broadcasting services licence for —

(a) satellite broadcasting services;

(b) cable broadcasting services; and

(c) subscription Management services.

(2) The Commission may require a licensee granted a licence under paragraph (1) to —
(…)
(b)provide a prescribed minimum number of Kenyan Broadcasting channels.”

“16(2)(a) The Commission may require a person granted a licence under paragraph (1) to distribute on its digital platform free to air and subscription broadcasting services and related data on behalf of other licensed broadcasters.”

Respectfully this blogger disagrees with the Supreme Court’s application of ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc. & 6 Others, a case decided by the Supreme Court of the Philippines. The point of disagreement is definitional in nature. In the Kenyan context, the Copyright Act defines “broadcast authority” to include “any other broadcaster authorised by or under any written law”. Therefore this means that if Multichoice (which appears to be akin to PMSI in the Philippine case) were licensed to “broadcast” in Kenya, as defined by the Copyright Act, then it would be considered a broadcast authority. In this regard, it is important to note that the definition of “broadcast” under the Copyright Act includes “transmission by satellite”. It follows that Signet, PANG and StarTimes are clearly broadcast authorities since they are all licensed to broadcast by CAK formerly CCK. Therefore it is this blogger’s respectful opinion that the Supreme Court erroneously found that no rebroadcasting had taken place without considering the definition of “broadcast authority” provided in the Copyright Act.

With respect, this blogger submits that the Supreme Court’s attempt to couch the “must carry” rule in fair dealing terms merely confirms the ‘definitional’ argument discussed above. In this connection, this blogger respectfully questions why the Supreme Court brings up ‘fair dealing’ (one of the defences in copyright infringement suits) yet it claims that no act of copyright infringement (i.e. rebroadcasting) was committed by the appellants.

On the issue of constitutional IP protection, this blogger is pleased that the Supreme Court confirmed the precedent set by the learned Majanja J., as discussed above. In this regard, the court held:-

“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. (…) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim,and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”